Thad wrote:I've been meaning to write about In re Tam since it came down, and now Randazza has a good article on it at Popehat.

tl;dr there's a band made up of Asian-American performers called the Slants, and their trademark application was rejected under the Lanham Act's prohibition on "disparaging" trademarks -- the same provision under which the Redskins trademark was recently nullified.

The Slants won on appeal; the court determined that trademarks are subject to First Amendment protections and the anti-disparagement clause is unconstitutional.

While I admit to some schadenfreude when the Redskins trademark was nullified, on balance I think this is the right call. I don't like letting government bureaucrats deciding what is and isn't offensive.

Senator HAWKINS. Well, I might tell you that if you were to go in a toy store — which is very educational for fathers, by the way; it is not a maternal responsibility to buy toys for children — that you may look on the box and the box says, this is suitable for 5 to 7 years of age, or 8 to 15, or 15 and above, to give you some guidance for a toy for a child.

Do you object to that?

Mr. ZAPPA. In a way I do, because that means that somebody in an office someplace is making a decision about how smart my child is.

The reason for Randazza tackling this subject now is that the DoJ just issued a brief reading In re Tam as nullifying not just the prohibition on "disparaging" trademarks but also the one on "scandalous and immoral" ones.

Certainly, I find both prohibitions to be offensive under the First Amendment, but I can at least emotionally (if not Constitutionally) get on board with the government wanting to put its fingers on the scales of justice when it comes to opposing racism. But, as the In re Tam case shows us, when the government tries to do that, it usually does so with all the grace and logic of a Chris Farley character. Nevertheless, give them credit for good intentions.

On the other hand, the prohibition on "immoral and scandalous" trademarks was nothing more than a neo-Comstock attempt to legislate morality and to suppress sexual speech at the to serve illegitimate goals. One of my favorite law review articles ever was by Steve Russell, writing about the Communications Decency Act. He wrote:

By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. (source)

Every time I got a Section 2(a) rejection under the immoral and scandalous clause, I heard those words in my head, replacing "U.S. Attorney" with "trademark examiner." Today, perhaps, those examiners can go listen to Louie Louie, see if they find naughty words in it, and go whine to the FBI about it.

Well la-dee-FRICKIN'-dah.

A fun note about the Louie Louie thing, from a friend:

Monty wrote:Dave Marsh wrote a whole book about Louie Louie and the FBI's investigation of it. The punch line is that there really is cursing in the Kingsmen's recording; it's just not where they were looking because it's not in the lyrics.

(At 0:53 of the song, the drummer yells "Fuck!" because he screwed up and NO ONE INVESTIGATING THE SONG EVER NOTICED)

Can't say I'd fault them on that score - I can hear the shout just fine, but no way would I have ever figured out it was anything other than some generic rock-encouragement holler.

tl;dr the Zappa Family Trust owns the "Zappa Plays Zappa" trademark; Moon and Dweezil are both benificiaries of the ZFT but only Ahmet and Diva are trustees. Dweezil is angry that Ahmet wants a licensing fee for using the "ZPZ" marks; Ahmet claims that the fee is $1 per year plus an unspecified but "reasonable" percentage of profits.

The NYT article suggests that Ahmet is also demanding performance rights to the tune of $150,000 per song if Dweezil won't pay the fee, under a pretty dubious interpretation of copyright law. Ahmet denies that; he doesn't say anything about copyrights at all and says he's just asking for the same terms for using the ZPZ trademark that Gail put into place years ago.

All in all, it sounds like a pretty shitty situation. I think both brothers have done and are doing a great deal to preserve their father's legacy. I don't think that Dweezil should be inhibited in any way from continuing to perform Frank's music (I've seen ZPZ, I think, three times; it's a great show), but I also think it's entirely reasonable to kick some of the proceeds back to Ahmet to finance the preservation of the Vault.

And, y'know, on a basic human level it's about two brothers (and the two sisters, too, for that matter) fighting over the legacy of a father who they lost when they were young and a mother who they just lost last year.

It's a good step in the right direction, but I'm still really hoping that another appeals court reverses the previous ruling that API's are copyrightable in the first place.

What we've got now is a precedent that it can be legal to copy somebody else's API. That's a good thing, and it's worth celebrating -- but it's not enough. What we need is a precedent that it is always legal to do so.

It's been a long, long time coming: the EFF is suing the US government over the DMCA's anti-circumvention clause, on behalf of hacker Bunnie Huang (best known for hacking the original Xbox, currently seeking to design a product that will overlay content on top of HDCP video, and recently in the news for collaborating with Edward Snowden to create a device that will tell you when your phone is transmitting data) and Johns Hopkins security researcher Matthew Green.

EFF's legal argument is broad but straightforward: if speech is protected by the First Amendment, and you have to circumvent DRM in order to express that speech, then circumventing DRM is, in that instance, protected by the First Amendment.

They're not seeking to have section 1201 overturned entirely; if you broke DRM in order to copy and illegally redistribute copyrighted content, you'd still be guilty of both infringement and circumvention. But if you broke DRM to do something legal -- in Green's case, researching security issues -- then breaking DRM to do that would be legal.

Basically they're seeking a blanket exemption stating that 1201 can't be used as an end run around the First Amendment. No more petitioning the Library of Congress every three years and maybe losing the exemptions you've had for the previous three years.

This is going to be tied up in the courts for years, and may well go to the SCOTUS given its constitutional question. And we may not get the victory we'd like to see. But I expect that, at minimum, we'll see a ruling that no, companies can't go threatening to sue security researchers for pointing out flaws in their software.

I'm surprised it took this long for the other shoe to drop, but another Sonic artist is suing Archie and Sega over ownership of 15 characters he created and the issues they appeared in.

The artist in question is Scott Fulop. Unlike Ken Penders, he was actually an employee of Archie at one point (an editor), but according to the New York Post he was a freelancer, not an employee, when he drew the issues in question.

So yeah, if he wasn't an employee and Archie forgot to make him sign a work-for-hire contract, then he's in the right here. And since it sounds like Archie's Mamaroneck office forgot to make anyone sign WFH agreements back in those days, he's not likely to be the last one to stake a claim, either.

EFF, Techdirt: SCOTUS unanimously rules that companies can't use patents to do an end run around first sale doctrine (with a dissenting vote from Ginsburg on an international aspect of the case).

As I understand it, it goes like this: Lexmark has a patented ink cartridge design. That prevents other manufacturers from making ink cartridges that infringe on its patent.

So far so good.

However, Lexmark also tried to use its patent, and a sale contract, to say that a buyer can't refill an ink cartridge he's bought, or resell it. Basically, it asserted that it could use its patent not just to control its ink cartridge design, but also to control what people were allowed to do with ink cartridges after buying them.

Supreme Court said no, that's not how patents work, and also that's not how selling things works.

Now, this is a ruling on patents, so it doesn't set any precedent for copyright, including the DMCA and its anti-circumvention clause. But it's hard to read Roberts's opinion without thinking of the ongoing John Deere/DRM/right to repair controversy:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.

The court's done a pretty good job of smacking down patent abuse over the past few years. I'd really like to see it do the same with copyrights.

I think this is a bad result. "Comic con" is a generic, descriptive term, and variations on combining "comic" with "con" have been around since the very first comic book convention, the 1964 New York Comicon. The trademark should never have been granted.

Also the same operation is trying the same nonsense with "This Land is Your Land", which I could only imagine would have Woody Guthrie laughing his ass off (and maybe offering a few sharp words for the idiots trying it).

Bunnie Huang is crowdfunding a video device designed to modify video signals before output.

He's creating it, in part, to help establish standing for his lawsuit against the US government over the DMCA's anti-circumvention clause. As you presumably all know by now, the DMCA makes it illegal to circumvent a copy protection mechanism for any purpose (with a few exemptions, established every three years and only effective for three years at a time).

Huang's device operates as an example of what fair-use practices are and are not legal under the DMCA. It's got an encrypted mode which can overlay content (such as text) on an encrypted video but can't process any of the content of the video, and an unencrypted mode which can actually process and modify video. The key point for demonstration is this: if you've got an unencrypted video stream, it's legal to run speech recognition on it and automatically create subtitles. If the video stream is encrypted, it's illegal to do that.

The new rules will be disappointing for average users who had hoped to get abandoned multiplayer games up and running again, just for fun. Albert told Motherboard that the Museum of Art and Digital Entertainment pushed to make these exemptions cover "affiliate archivists," allowing private citizens to contribute toward software preservation. "The Copyright Office specifically rejected that request," they said. "I think one of the things that they are concerned about is that the number of people who do this work should stay relatively small."

There’s also a catch for the institutions that do this work: Archivists and preservationists have to acquire the server code legally, and that’s a tall order.

So, as usual, the exemptions are a step in the right direction, but not a very big one.